The opinion of the court was delivered by: DENISE COTE, District Judge
On September 18, 2003, pro se petitioner Darren Miller
("Miller") filed this timely petition for habeas corpus relief
pursuant to 28 U.S.C. § 2254. Miller seeks to vacate his 2001
conviction following trial for criminal sale of a controlled
substance in the third degree and criminal sale of a controlled
substance in or near school grounds. In his petition, Miller
claims that he is being held unlawfully on the following grounds:
(1) the trial court's initial instruction to the jury concerning
accomplice liability was incomplete and misleading; (2) the trial court's rereading of its instruction concerning accomplice
liability to the jury, in response to a jury note during
deliberations, was erroneous; (3) the prosecutor made improper
comments during his closing argument to the jury; and (4) his
trial counsel rendered ineffective assistance to him, which
violated his rights under the Sixth Amendment.
On December 10, 2003, the petition was referred to Magistrate
Judge Kevin Nathaniel Fox for a report and recommendation (the
"Report"). On January 31, 2005, Judge Fox recommended that the
petition be denied.
The relevant facts are set forth in the Report and summarized
here. Miller and a co-defendant were convicted following a jury
trial in the Supreme Court of New York County. Miller was
sentenced on July 24, 2001 to five to ten years of imprisonment.
Miller, his co-defendant, and a third defendant who pleaded
guilty, were arrested in connection with an undercover purchase
of cocaine on the street. Miller was accused of being the "stash"
holder. As the undercover officer counted money to pay for the
drugs, Miller handed a sandwich bag with the cocaine vials to an
accomplice to give to the officer. Miller testified in his
defense at trial, claiming that he had been on the way to visit
the mother of his daughter when he was arrested.
At the charging conference Miller's counsel requested certain
charges; the requests were largely denied. When told that he would be giving the first summation in twenty minutes,
Miller's counsel left the courtroom. In his absence, the court
asked counsel for Miller's co-defendant if he wanted a charge on
identification; defense counsel did not respond.*fn1
In his summation, Miller's counsel argued that an undercover
officer spends his entire day "concerned with deception" and that
the officer who had testified was not worthy of belief. The
prosecutor asked the jury in his summation to weigh the
credibility of Miller against that of the police officers who
testified at trial. He added that Miller did not need to prove
anything since the burden of proof was on the prosecution, but
that the jury could consider the fact that the mother of Miller's
daughter had not testified to corroborate Miller's testimony that
he was scheduled to meet her that day.
Following summations, Miller's attorney requested that the
court charge that knowledge of a crime is insufficient to
establish guilt. The court refused, indicating that it would use
a patterned jury charge which conveyed essentially the same
information. In response to a jury note during deliberations, the court advised it would reread the charge it had already given
the jury. No attorney objected. After the charge was reread to
the jury, Miller's counsel renewed his request for the Court to
add that mere presence even with knowledge is insufficient. The
Court declined to do so.
Miller appealed the judgment of conviction to the Appellate
Division, First Department on the grounds that (1) the trial
court's initial and supplemental instructions concerning
accomplice liability were incomplete and misleading, specifically
because they (a) failed to quote N.Y. Penal L. § 20.00, (b)
improperly focused on Miller's "participation" in the offense
rather than his intentional assistance in the completion of the
offense, (c) did not charge that mere presence at the scene "even
with knowledge that the crime is taking place" does not by itself
establish criminal liability, and (d) failed to explain the
application of the law to the facts; and (2) the prosecutor's
closing argument was improper in that it (a) suggested,
improperly, that Miller was obliged to summon the mother of his
daughter, about whom he had testified, and (b) vouched for the
credibility of the prosecution's police officer witnesses. On
June 3, 2003, the First Department unanimously affirmed his
conviction, finding that (1) the instructions given by the trial
court to the jury concerning accomplice liability correctly
conveyed the applicable legal standards, (2) the trial court
fulfilled its obligation to respond meaningfully to the jury's
request for a supplementary instruction concerning accomplice liability when it repeated its original instruction to the jury
on that matter, and (3) the challenged portion of the
prosecutor's closing argument was not improper but, rather,
constituted fair comment on the evidence in response to arguments
urged upon the jury by Miller's counsel. See People v.
Miller, 759 N.Y.S.2d 658 (App.Div. 1st Dep't 2003). Thereafter,
Miller applied to the New York Court of Appeals for leave to
appeal from the determination of the First Department. That
application was denied on July 22, 2003. See People v.
Miller, 100 N.Y.2d 584 (2003).
Miller's pro se federal habeas corpus petition was received
by the district court's Pro Se Office on September 18, 2003.
The Report recommends that the petition be denied. After the
Court granted Miller's request for an extension of time for
filing objections to the Report, Miller filed objections dated
March 1, 2005. Although Miller's objections largely reiterate the
arguments set forth in his original petition without addressing
the Report's analysis or conclusions, this Opinion reflects a de
novo review of the Report. For the following reasons, the Report
is adopted, and the petition is denied.
The Court may accept, reject, or modify, in whole or in part,
the findings or recommendations set forth within the Report.
28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). The Court must make
"a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P.
72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.
1997). Where there are no objections, the Court may accept the
Report, provided there is no clear error on its face. See
Heisler v. Kralik, 981 F. Supp. 830, 840 (S.D.N.Y. 1997),
aff'd sub nom. Heisler v. Rockland County, 164 F.3d 618 (2d
Where a state court has adjudicated the merits of a claim
raised in a federal habeas corpus petition, a writ of habeas
corpus may issue only if the state court's adjudication of the
claim either resulted in a decision that is contrary to or an
unreasonable application of federal law as determined by the
Supreme Court of the United States, or resulted in a decision
that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d). In addition, when considering an application
for a writ of habeas corpus by a state prisoner, a federal court
must be mindful that any determination of a factual issue ...